Virginia has become the first state to crack down on billionaire Michael R. Bloomberg’s effort to embed within the attorney general’s office privately funded lawyers dedicated to pursuing climate change litigation.
The Republican-controlled General Assembly inserted an amendment in the 2019 biennial budget requiring those working for the attorney general to be state or federal government employees — with certain exceptions — and paid solely with public funds.
Last week’s addition to the $100 billion budget bill, which goes to Gov. Ralph Northam, a Democrat, for his signature, would appear to nix any effort by Attorney General Mark Herring to bring on climate lawyers paid for by the Bloomberg-funded State Energy & Environmental Impact Center at the New York University School of Law.
Cheering the amendment was Chris Horner, senior fellow at the free market Competitive Enterprise Institute who hailed Virginia as the first state to take action against what he has called “private mercenaries” engaged in “law enforcement for rent.”
“Sunday’s vote is a statement from Virginia’s elected representatives that Bloomberg’s money can’t buy a donor’s way into Virginia law enforcement,” Mr. Horner said in a social media post. “We applaud this vote while wondering what’s wrong with the rest of these legislatures.”
At least nine states and the District of Columbia have been selected to receive the privately financed special assistant attorneys general since the program began in August 2017, founded with a $6 million grant from Bloomberg Philanthropies.
Mr. Herring’s office submitted an application and was accepted, but the attorney general, a Democrat, has insisted that he never brought on a climate prosecutor, although he praised the program in a December 2017 press release.
Spokesman Christopher Gray said in an email that the State Climate Center had no comment about the Virginia amendment. Mr. Herring’s office did not respond to a request for comment.
Mr. Horner, who has filed an open-records lawsuit against Mr. Herring for documents related to the application, said Virginia is key because the other states involved in the program have at least one legislative chamber controlled by Democrats.
“The Oregon legislative counsel has said, ‘Yep, this is illegal under Oregon’s law, but there aren’t enough Republicans to do anything about it in Oregon, and the Democrats don’t want to,’” Mr. Horner told radio talk show host Joe Thomas on WCHV in Charlottesville.
“Same thing in New York and so on,” Mr. Horner said. “So Virginia was really the test. And the General Assembly passed the test, and I’m very heartened.”
He referred to Oregon deputy legislative counsel Marisa Jacobs, who said in a Sept. 11 legal analysis that the fellowship program violates state law because special assistant attorney general Steve Novick is paid by an entity other than the state and reports to the center and the attorney general.
“We conclude that some aspects of Mr. Novick’s appointment conflict with the Attorney General’s authority to appoint assistants under ORS 180.140,” Ms. Jacobs said in a letter obtained by The Washington Free Beacon.
Oregon Deputy Attorney General Frederick Boss disagreed, arguing in a Sept. 24 letter that the arrangement is “consistent with many longstanding SAAG appointments in areas like tobacco enforcement, bond issuance, and complex health care transactions.”
The Virginia budget amendment, HB 1700, says that “all legal services of the Office of the Attorney General shall be performed exclusively by (i) and employee of the Office, (ii) an employee of another Virginia governmental entity as may be provided by law, or (iii) an employee of a federal government entity,” except as otherwise specified by law.
The attorney general’s office special counsel policy does allow the hiring of outside lawyers when “it is impracticable or uneconomical for the Office to render service.”
In those cases, “the sole consideration for such legal services shall be a monetary amount bargained for in an arm’s length transaction with such person and the Office of the Attorney General or another Virginia governmental entity, stating under what authority that office enters the contract,” the amendment states.
The Free Lance-Star in Fredericksburg applauded the legislature’s action in a Wednesday editorial headlined “No insider access for private donors.”
“Billionaires who want to influence public policy have many options in which to do so at their own expense,” the editorial said. “They can make campaign or charitable donations; set up a foundation; buy advertising; or fund a special interest group. But one thing they should never be allowed to do is hide behind public institutions by paying them for insider access.”
Critics have argued that the program throws the prosecutorial power of the state behind climate activists paid to target the oil and gas industry. The program’s application requires states to explain how the fellows would be involved with “the advancement and defense of progressive clean energy, climate and environmental matters.”
Their “sole duty of loyalty is to the attorney general who hired them,” according to the application, although SAAGs also are required to report periodically to the center.
In a Jan. 29 decision, the Richmond Circuit Court ruled against the attorney general’s effort to dismiss the case brought by Mr. Horner. The attorney general’s office has argued that it has no records related to its application, which Mr. Horner has disputed.
“There’s more here in Virginia, we’re confident,” he said. “I didn’t expect much out of the legislature, and they stood up and said, ‘Not here.’ And Virginia’s the only one so far.”
In addition to Oregon and Virginia, the other jurisdictions that have been accepted to receive Bloomberg-funded prosecutors are Illinois, Maryland, Massachusetts, New Mexico, New York, Pennsylvania, Washington and the District of Columbia, according to the center.